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The Ogoni 9 trial served to safeguard the common interests of Shell and the Abacha regime

Shell falsely claimed to be following an apolitical course whilst exerting its influence through quiet diplomacy. In reality, it was very much involved with the course of the events during the trial… Shell’s lawyer was present at the bribing of witnesses who had to give incriminating statements against the “Ogoni 9”; they were offered compensation and a position at Shell;

By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts. As can be seen in the footnotes, the allegations are supported by voluminous evidence.

Shell and the Abacha regime operated in tandem

Extracts begin

8.5 The Ogoni 9 trial served to safeguard the common interests of Shell and the regime

8.5.1 Introduction

  1. The Ogoni 9 trial was the culmination of Operation Restore Order in Ogoniland. With the Ogoni 9 trial Abacha disposed of the Ogoni’s main political representatives in an extreme attempt to finally break the resistance. The trial served a common goal, the resumption of oil extraction in Ogoniland, and followed the ceaseless urging of Shell to bring order to matters. Professor Olubayo Oluduro said about this:“Although Ken Saro-Wiwa and the other eight Ogonis were ostensibly charged and tried for murder, it is obvious to the world that they were actually arrested and executed for expressing their discontent with the environmental harm caused by Shell and the Government in their native Ogoniland.”383
  2. As was explained in chapter 4, the Ogoni 9 trial, which commenced 6 February 1995, was a carefully prepared show trial. The 15 suspects had, when the trial started, already been held in custody for more than eight months without official charge, although it was clear that they had been apprehended on suspicion of involvement in the murder of the four traditional Ogoni leaders on 21 May 1994. Ken Saro-Wiwa, Barinem Kiobel and Baribor Bera did not hear the official charge until 28 January 1995, while Nordu Eawo and Paul Levula received the indictment on 28 February 1995. In this period the hearings of the specially set up Ogoni Civil Disturbances Special Tribunal also started. Footage of these hearings is submitted as exhibit 247. Fragments from them can also be seen in the revealing documentary “In-Remembrance Ken Saro-Wiwa” (exhibit 252).384 The trial would last until 31 October 1995 and end with the death penalty being carried out on nine of the fifteen suspects, who were executed on 10 November 1995. The serious human rights violations to which the suspects were exposed during the trial and that ultimately led to the executions are described in chapter 4.
  1. Because it soon became clear that the suspects would not receive a fair trial and were in fact political prisoners because of their opposition to Shell, all eyes were on the company. Shell falsely claimed to be following an apolitical course whilst exerting its influence through quiet diplomacy. In reality, it was very much involved with the course of the events during the trial, and in the meantime fully dedicating itself to its negotiations with the regime regarding the NLNG project which would be settled at the same time. At no time whatsoever did Shell reveal any dissatisfaction with the course of events, not even when it sent a tepid letter to Abacha just before the execution of the Ogoni 9 with a request for a pardon, for which it had apologised to the regime in advance.385 While Nigeria had by then been internationally degenerated into a pariah state, Shell continued to collaborate with the regime just as intensively.
  2. The fact that Shell’s involvement in the trial went beyond implicit support is evident from the following facts and circumstances, which are explained below:
    •  Shell itself sent a lawyer to the trial, who kept it well informed and supported the position of the prosecutor by means of a so-called watching brief;
    •  Shell lied publicly about the role that its lawyer fulfilled at the trial;
    •  during the trial Shell maintained contacts with the judges who had been appointed to decide on the case;
    •  Shell’s lawyer was present at the bribing of witnesses who had to give incriminating statements against the “Ogoni 9”; they were offered compensation and a position at Shell;
    •  Shell’s protégé Okuntimo played a dominant role during the trial;
    •  at no time did Shell publicly or discretely distance itself from the course of events during the trial;
    • Shell kept emphasising its economic interests to the regime and during the trial negotiated with the regime regarding new projects in Nigeria. One month after the executions the large-scale National Liquid Natural Gas project was announced, by which the collaboration between the regime and Shell was extended for many years.

8.5.2 Shell sent its lawyer to look after its interests

281. Shell sent its own lawyer O.C.J. Okocha and his colleagues to the tribunal with a so- called ‘watching brief’. A watching brief in the Nigerian legal system is a way for a third party to keep informed of developments in proceedings in order to safeguard its direct interests in them. To this end the lawyer who has the watching brief usually works closely with the public prosecutor. Nigerian jurisprudence shows that a watching brief may be refused if a party has no interest in the trial:

“..the practice of watching brief is not unknown to our Courts. It is part of our unwritten rules of practice in our Criminal Courts. . . . My understanding of this system which applies only in criminal cases is that a person seeking to watch brief in a case must not necessarily be a party to that case but he must have an interest in the case which he seeks to protect. Such a person then appoints a Counsel to appear in Court and watch the proceedings on his behalf to ensure that his interest is not willfully jeopardized. A Counsel so appointed then enters an appearance as watching brief, sits and watches the proceedings and may take notes of the proceedings which he can use in reporting to his client.”386

282. Oronto Douglas, one of the suspects’ lawyers, described this role in his declaration in the American proceedings as follows:

“A third party may participate through counsel in a Nigerian criminal proceeding through a procedure known as a watching brief. The purpose of a watching brief is to protect the client’s interest. A lawyer holding a watching brief participates in the proceeding, which often includes providing informal assistance to the prosecutor. To participate by watching brief, a party must have a legal interest to protect that is at stake in the proceedings.”387

283. Shell’s regular lawyer O.C.J. Okocha was instructed by Shell’s Legal Adviser East I.O. Ahize on 1 December 1994 as follows:388

“As Shell has various interests in the Ogoni area which were adversely affected by the disturbances, we consider it necessary to brief a lawyer to follow up the proceedings in case Shell would be expected to testify before the panel. We therefore request you to hold a watching brief on behalf of Shell during the proceedings. We expect you to:

– attend the sittings of the panel on a regular basis.

– report the outcome of the proceedings of each sitting to Shell.

– in case Shell is to testify before the panel, document and conduct the presentation of Shell’s case to the panel.

– pursue and obtain copy of the panel’s final report, recommendation or judgment for Shell’s records.”389

284. The transcripts of the trial show that at the beginning of the hearing Shell’s lawyer stressed that he was present on Shell’s behalf with a watching brief.390
285. Shell argued publicly that it had withdrawn its lawyer when it became apparent that the trial was not about the disturbances in Ogoniland, but exclusively about the murders:

“SPDC had no connection with the tribunal. Our lawyer attended the first day as an observer because we understood the tribunal was concerned generally with civil disturbances in Ogoniland, which had affected our staff and facilities. When it became clear on the first day of the tribunal that this was a murder case, the lawyer was withdrawn.”391

286. And Brian Anderson said in the American proceedings that after the first day of the trial Shell only received public information about the trial:

“Q. Did you receive reports on the progress of the trial of the Ogoni nine?

A. At the very beginning I had the reports and afterwards it was public information.

Q. Can you explain what you mean by in the very beginning you had the reports?

[…]

A. I received a report the first day of the activities of the court.

Q. After receiving a report of the activities of the court on the first day did you receive any other reports on the progress of the trial other than what you have learned through the media?

A. No.” 392

287. Indeed, on 21 February 1995, the second court day of the trial in Nigeria, O.C.J. Okocha suddenly announced that he was no longer present as Shell’s representative,393 but was there “on behalf of the Nigeria Bar Association […] as Official Observer”.394

288. Nothing was further from the truth, however. Both Shell and Okocha later admitted that Okocha – not as Shell said publicly – did indeed continue participating in the trial on Shell’s behalf:

“On further discussions with SPDC, my firm held a watching brief of the proceedings so that legal advice could be given when and if allegations should be made against SPDC”.395

289. Shell was not open about Okocha’s actual role in the trial until, in the American discovery proceedings, it relied upon the confidentiality of lawyer-client correspondence so as not to have to give up the Okocha & Okocha reports that were sent to Shell. This led to Shell indeed not having to submit the correspondence relating to the Ogoni 9 trial in the American proceedings. However, a description of these documents is included in the so-called privilege log (exhibit 198).

290. The privilege log shows that Shell, in contrast to its earlier statements, was kept informed of each sitting by Okocha or one of his colleagues. The lawyers carried on observing for Shell until the end of the trial396 – by which time the lawyers of the Ogoni 9 had long since withdrawn on account of the evident violations of the fundamental rights of their clients – and kept sending reports of it to Shell. Even Brian Anderson, entirely contrary to what he had previously testified, received at least nine written reports on the developments in the Ogoni 9 trial.397 Okocha later testified in the American Kiobel case:

“I or my designees had attorney-client communications on the Tribunal proceedings. My designees included S.N. Atabe, B. Akang, O.A. Solagbade, I.A. Uzakah, and B. Fadugba, among others. Each of those individuals was a Juneor solicitor with my firm, and each was therefore authorized and able to convey attorney-client communications to SPDC regarding proceedings before the Tribunal.”398

291. It concerns a total of 97 reports, marked in the privilege log as “Communication from counsel regarding proceeding before the Ogoni Civil Disturbances Tribunal”.399 The reports were sent to Shell employee Ahize. Azihe in his turn reported to the board of SPDC(including Anderson, Achebe and Imomoh) and representatives of the service companies.

292. Persons present at the trial stated that – entirely in line with the comments above about a watching brief – Okocha and his colleagues only spoke to the representatives of the government and the prosecutor, Chief Umeadi San, and attended the sittings at their side (exhibit 26: Declaration Femi Falana, 16 June 2017).400

8.5.3 The role of Shell’s protégé Okuntimo

293. Okuntimo demanded such a dominant role during the Ogoni 9 trial that Birnbaum dedicated a separate chapter to it in his report.401 For example, Okuntimo personally monitored all the visits of lawyers to the suspects and the lawyers were not permitted to visit their clients without his consent.402 Client discussions took place in his presence and within his earshot.403 Okuntimo was also responsible for the security of the court room and during the sittings maintained direct contact with the chairman of the tribunal, Justice Auta, who called him “Paul”. To the astonishment of the suspects’ lawyers Auta appeared to be in possession of information about their clients at the hearing that could only have come from the circles around Okuntimo.404

294. Okuntimo was seen by those concerned as the administrator of the regime in Ogoniland and the key player behind the trial (exhibit 181: Transcripts 23 February 1995).405 Charity Levula and Blessing Kpuinen said that Okuntimo was responsible for the arrest of their husbands. During the Ogoni 9 trial Esther Kiobel said that Okuntimo had told her he would ensure her husband would be sentenced to death, since it had not been possible to poison his food. She also saw Okuntimo and Alhaji Kobani, the important prosecution witness, talking together in Okuntimo’s office in Bori Camp.406 During a conversation between observer Birnbaum and the public prosecutor, Okuntimo personally pulled up a chair, uninvited.407

295. As described in chapter 4, Okuntimo was also responsible for the ill-treatment of Esther Kiobel and the harassment of suspects, their family members and lawyers.408

Extracts end

Footnotes

383 O. Oluduro, Oil Exploitation and Human Rights Violations in Nigeria’s oil Producing Communities, dissertation, Intersentia, 2014 (exhibit 243), p. 237.

384 In Remembrance,Ken Saro-Wiwa, directed by Glenn Ellis, 1996, Channel 4 (exhibit 252), at 00:57-01:40, 10:37- 13:00, 13:39-14:16, 15:34-18:20, and 19:58-10:57.

385 See below, at 325 and 326.

386 Federal Republic of Nigeria v. Abiola [1994] FHCLR 156, 160 (exhibit 203).

387 Declaration Oronto Douglas, 4 February 2009 (exhibit 23), para. 8.

388 See also re Okocha section 8.2.2, at 178 (Umuechem): in 1990 Okocha was the public prosecutor of Rivers State who decided that criminal prosecution of those responsible for the Umuechem bloodbath was unnecessary.

389 Letter I.O. Ahize, Legal adviser SPDC, to O.C.J. Okocha, “Re: Ogoni Disturbances Representation at the Sittings of the Tribunal”, 1 December 1994 (exhibit 151); See also Payment by SPDC to O.C.J. Okocha, 8 February 1995 (exhibit 153); Declaration Oronto Douglas, 4 February 2009 (exhibit 23); Declaration O.C.J. Okocha, 8 December 2003 (exhibit 49).

390 Transcripts day 1, 6 February 1995 (exhibit 179), p. 9: “MR. BAYO FADUGBA: My Lord, I am holding brief for Chief O.C.J. Okocha. My Lord, we have a watch brief for Shell Development Company of Nigeria”; p. 10: “MR. FADUGBA: My Lord, In my introduction, I said that I am holding brief for Chief O. C.J. Okocha who has a watching brief on behalf of Shell Development Company and I would like to be on record, Sir. CHAIRMAN: I have already written that. MR. FADUGBA: I am much obliged, my Lord.”.

391 Shell, Nigeria Letter: Ogoni and the Niger Delta, 1996 (exhibit 166), p. 7. Cf. WCC Report “Ogoni – the struggle continues” Comments by Shell (exhibit 167), pp. 21, 22: “When it became clear on the first day that the tribunal was for the trial of murder of four Ogonis, mr. Fadugba announced the withdrawal of his representation in court. It is understood that Mr. Okocha attended the trial subsequently on a number of days. It is a matter of public record that this was in his capacity as the chairman of the Rivers State Bar Association, and not as representative of SPDC”. Shell’s lack of knowledge of what the tribunal was about is actually implausible given its close ties with the regime (cf. chapter 8.4, in particular 8.4.4 and 8.4.5) and the public interest in the trial and the lengthy detention of the Ogoni 9. At the time that it gave Okocha instructions in December 1994 and when the hearing of the case started at the sitting on 16 January 1995 the newspapers had been full of the trial for months and it was perfectly clear who the suspects were and of what they were suspected. The legal objections to the specially created Civil Disturbances Special Tribunal had also been long and widely known at this time (see chapter 4.3).

392 Public Deposition Brian Anderson, 13 February 2003 (exhibit 17), pp. 127-128.

393 Transcripts day 2, 21 February 1995 (exhibit 180), pp. 65-66.

394 Transcripts day 2, 21 February 1995 (exhibit 180), p. 2.

395 Declaration O.C.J. Okocha, 8 December 2003 (exhibit 49), p. 6. Cf. Defendants’ supplemental interrogatory responses, 17 December 2008 (exhibit 195), p. 4, in which Shell admits that Okocha & Okocha “held a watching brief of the proceedings so that it could give legal advice if and when allegations were made against SPDC”.

396 This is also evident from the Defendants’ supplemental interrogatory responses, 17 December 2008, Appendix A (exhibit 195). They reveal that in total Bayo Fadugbo attended 61 sitting days for Shell, Okocha attended four sitting days and other lawyers from Okocha’s office (Okocha & Okocha) attended between 20 and 30 other sitting days.

397 Privilege log Wiwa v. Royal Dutch Petroleum Company, et al, Kiobel v. Royal Dutch Petroleum Company, et al, October 2003 (exhibit 198), pp. 9-11.

398 Declaration O.C.J. Okocha, 8 December 2003 (exhibit 49), pp. 6-7.

399 Privilege log Wiwa v. Royal Dutch Petroleum Company, et al, Kiobel v. Royal Dutch Petroleum Company, et al, October 2003 (exhibit 198).

400 See also: Declaration Ledum Mitee, 2 May 2017 (exhibit 41), paras. 13-15; Declaration Uche Onyeagucha, 15 June 2017 (exhibit 52).

401 See Birnbaum (exhibit 255), pp. 44-48.

402 Ibid.

403 Ibid, p. 46.

404 Ibid, p. 47: “These incidents suggest at the least that tribunal sometimes receives information from a military or police source”.

405 On the third sitting day the prosecutor said of Okuntimo: “at moment, he is in charge”, p. 31.

406 Declaration Esther Kiobel, 12 February 1995 (exhibit 38).

407 M. Birnbaum, Nigeria Fundamental Rights Denied, Report of the trial of Ken Saro-Wiwa and Others, Article 19, June 1995 (exhibit 255), p. 46: “After about an hour Okuntimo walked in uninvited and sat down. I did not ask him to leave. It was not for me to do so and I was curious to see whether anyone else would ask him to go. Nobody did. He stayed for about half an hour. From time to time he got up and strolled around the room. He made a few contributions to his own to the discussion. When I asked about the legal qualification of Lt-Col Ali, it was Okuntimo who told me what they were. He used words to the effect that he (Okuntimo) was the Chief of Ogoniland.”.

408 See chapters 4.4, 4.5 and also 8.3.2.

Footnotes end

At the time of all of these horrific events in Nigeria, orchestrated by Shell to a large degree, Shell claimed that it was operating within its core business principles, including honesty, integrity, openness and respect for people. 

FURTHER INFORMATION ABOUT THE WRIT

The numbered paragraphs above are extracted from the English translation of a 138 page Writ of Summons served on Royal Dutch Shell companies on 28 June 2017 by Dutch Human Rights law firm Prakken d’Oliveira. They represent four widows including Esther Kiobel who hold Shell liable for the murder of their husbands individual Ogoni leaders now known collectively as the ‘Ogoni Nine‘. MOSOP Chairman Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text.

Disclosure: The lead claimant Esther Kiobel, Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing *this case. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here. The denial does not explain why Shell settled for $15.5 million in June 2009 a case legally and substantively the same.

The Guardian: Shell pays out $15.5m over Saro-Wiwa killing: 9 June 2009

Shell to Pay $15.5 Million to Settle Nigerian Case: The New York Times: 8 June 2009

Shell, Nigerian families settle suit for $15.5 million: Reuters: 8 June 2009

Shell to pay $15.5 million to settle Nigeria claims: CNN: 8 June 2009

Shell Settles Human Rights Suit for $15.5 Million: Fox News/AssociatedPress: 8 June 2009

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